Skilling Takes Appeal to High Court

Just when you’ve gone a while without hearing the name Jeff Skilling, it pops back up, typically without warning. Today, Skilling’s lawyers — a group of O’Melveny & Myers heavyweights that includes Walter Dellinger and Dan Petrocelli — asked the U.S. Supreme Court to hear Skilling’s case. Click here for the 37-page cert. petition.

Petrocelli et al. have decided to focus on two points: whether the federal “honest services” statute was correctly applied to Skilling (and whether that statute is, in fact, unconstitutionally vague), and whether the decision to try Skilling in Houston — rather than shift out of Enron’s hometown — denied Skilling a fair trial.

In Petrocelli’s words, the “questions presented” are:

1. Whether the federal “honest services” fraud statute, 18 U.S.C. § 1346, requires the government to prove that the defendant’s conduct was intended to achieve “private gain” rather than to advance the employer’s interests, and, if not, whether § 1346 is unconstitutionally vague.

2. When a presumption of jury prejudice arises because of the widespread community impact of the defendant’s alleged conduct and massive, inflammatory pretrial publicity, whether the government may rebut the presumption of prejudice, and, if so, whether the government must prove beyond a reasonable doubt that no juror was actually prejudiced.

Skilling was convicted in May of 2006 on 19 charges related to the meltdown of Enron back in 2001. He is currently serving time in an Englewood, Colo., federal prison.

Prosecutors used the honest services theory to convict Skilling of conspiracy to commit securities and wire fraud. The jury instruction linked only 12 counts of securities fraud to that conspiracy count, but Petrocelli has argued that all 19 counts on which he was convicted — including a count of insider trading and five counts of lying to auditors — should be thrown out because the theory taints everything. Click here for a Houston Chronicle article from last April that focuses on honest-services fraud; here for a recent story from the WSJ on honest-services prosecutions.

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